THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as FSM v. Santa, 8 FSM Intrm. 266 (Chk. 1998)

[8 FSM Intrm. 266]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

LOVER SANTA and GRACE TEREAS,
Defendants.

CRIMINAL CASE NO. 1997-1500

MEMORANDUM OF DECISION

Richard H. Benson
Associate Justice

Hearing:  March 3, 1998
Decided:  March 4, 1998
Memorandum Entered:  March 11, 1998

APPEARANCES:
For the Plaintiff:          Terence M. Brown, Esq.
                       Assistant Attorney General
                       FSM Department of Justice
                       P.O. Box PS-105
                       Palikir, Pohnpei FM 96941

For the Defendant:     Joses Gallen, Esq.
             (Tereas)          Office of the Public Defender
                       P.O. Box 245
                       Lelu, Kosrae FM 96944
 
For the Defendant:     Ready Johnny, Esq.
              (Santa)           Office of the Public Defender
                       P.O. Box 754
                       Weno, Chuuk FM 96942

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HEADNOTES
Search and Seizure; Weapons
     Because a Rule 41(e) motion for return of seized property is predicated on the seizure's illegality and the showing of a right to possession, return of unregistered firearms is improper because possession of unregistered firearms is unlawful there is thus no right to possession.  FSM v. Santa, 8 FSM Intrm. 266, 268 (Chk. 1998).

[8 FSM Intrm. 267]

Evidence; Search and Seizure
     A court may suppress evidence obtained by an unlawful search and seizure.  FSM v. Santa, 8 FSM Intrm. 266, 268 (Chk. 1998).

Search and Seizure
     When a search or seizure is conducted without a warrant the burden is on the government to justify the search or seizure, but when the search or seizure is conducted pursuant to a judicially-issued warrant the burden rests with the defendant to prove the illegality of the search or seizure.  FSM v. Santa, 8 FSM Intrm. 266, 268 (Chk. 1998).

Search and Seizure ) Probable Cause
     A search warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.  FSM v. Santa, 8 FSM Intrm. 266, 268 (Chk. 1998).

Search and Seizure ) Probable Cause
     To determine probable cause, the question is whether a substantial probability exists in the mind of a cautious person which leads him or her to conclude that the items to be seized that are the evidence of a crime are in a particular place at the time the warrant is issued ) probable cause upon which a valid search warrant must be based must exist at the time at which the warrant is issued, not at some earlier time.  FSM v. Santa, 8 FSM Intrm. 266, 269 (Chk. 1998).

Search and Seizure ) Probable Cause
     Although crucial, the time lapse is not considered in isolation from other factors when determining probable cause.  The passage of time is not necessarily a controlling factor in determining the existence of probable cause because a court should also evaluate the nature of the criminal activity and the kind of property for which authorization is sought.  FSM v. Santa, 8 FSM Intrm. 266, 269 (Chk. 1998).

Search and Seizure ) Probable Cause
     First-hand information from a reliable informant that firearms were left in a particular building and other firearms were packed and shipped to that address months earlier will establish probable cause of illegal possession of firearms because firearms are something that do not deteriorate or pass away just through the passage of time and are usually left in just one position where kept and rarely, if ever, used, and delivery and then continued possession after receipt as a continuing matter may be inferred.  FSM v. Santa, 8 FSM Intrm. 266, 269 (Chk. 1998).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case came before me on March 3, 1998 for hearing on the Motion to Suppress Evidence and Quash Search Warrant filed February 9, 1998 by the defendant Grace Tereas.  It was agreed that if defendant Tereas prevailed on her motion that the same reasoning would apply to defendant Lover Santa and that the evidence would suppressed as to him as well.  Following oral argument the matter was submitted for decision which was rendered from the bench on March 4th.  My reasoning was given at that time.  This memorandum sets out the problem and the reasoning in full.
 
     The motion was filed pursuant to Rule 41(e) of the FSM Rules of Criminal Procedure for the

[8 FSM Intrm. 268]

return of property seized as a result of the search warrant.  According to the return of the search warrant the seized property consisted of one 7.6 caliber Ruger rifle, one .22 rifle, one .410 shotgun, one 9mm pistol, two other pistols, and some ammunition, all of which were unregistered.  Not all of the seized property figured in the criminal information filed by the FSM Attorney General's Office.  Defendant Tereas was charged with possession of a .357 Smith and Wesson handgun in violation of 11 F.S.M.C. 1223(5).  Defendant Santa was charged with possession of a 9mm Glock handgun, a .357 Python handgun, and a Ruger mini 30 rifle in violation of 11 F.S.M.C. 1223(5), and with possession of ammunition in violation of 11 F.S.M.C. 1206(1).

     A Rule 41(e) motion for return of seized property is predicated on the seizure's illegality and the showing of a right to possession.  See, e.g., Chuuk v. Mijares, 7 FSM Intrm. 149, 150 (Chk. S. Ct. Tr. 1995); In re Grand Jury Subpoenas, 926 F.2d 847, 855, 109 A.L.R. Fed. 541, 556 (9th Cir. 1991).  Since possession of unregistered firearms is unlawful Tereas conceded that no return was proper. Therefore there was no right to possession.  The motion for return of the seized property is therefore denied.

     The motion also asked that any such property seized be suppressed as evidence at trial pursuant to Criminal Rule 12(b)(3) because the search and seizure was illegal.  The court may suppress evidence obtained by an unlawful search and seizure.  12 F.S.M.C. 312(1).  When a search or seizure is conducted without a warrant the burden is on the government to justify the search or seizure, cf. FSM v. Tipen, 1 FSM Intrm. 79, 87 (Pon. 1982), but when the search or seizure is conducted pursuant to a judicially-issued warrant the burden rests with the defendant to prove the illegality of the search or seizure, United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980).  See also State v. Rand, 430 A.2d 808, 817 (Me. 1981) (government has burden to justify warrantless search even though the accused is the party moving to suppress evidence; however, accused has burden when seeking to challenge legality of search or seizure conducted under properly issued and executed warrant).

     The grounds for the motion are first, that the affidavit and the testimony of the police officer are insufficient to establish probable cause, and second, that the place to be searched was not described in the warrant with the particularity required by the Constitution.  The Constitution provides that "[a] warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized."  FSM Const. art. IV, 5.

     The search warrant in question was issued on April 11, 1996 "for the search of a building located below the Chuuk State Hospital in Nantaku on Weno, Chuuk, which building houses a store known as G.S. Lover Store and a residence, and for the seizure of an M-16 rifle, a pistol, a Winchester .22 rifle, a Springfield .22 rifle, and any other firearms and ammunition found on the property, . . ."  The application for the warrant was supported by an affidavit of a police office dated April 4, 1996 and testimony before the judicial officer on April 11, 1996.  These related that the police officer was called on March 29, 1996 by a named person who informed him that "[s]ometime last year" he saw an M-16 rifle and a pistol "being packed and sent by [a named person] in Guam in a shipping container destined for the G.S. Lover Store in Nantaku on Weno."  The named informant also said "that he left his Winchester .22 rifle serial #B2041332 and a Springfield .22 rifle serial #C445749, which were registered under his name in the house . . . ."  The police officer verified that the informant had last registered those two rifles in 1989.

     Concerning the location, I was invited to take judicial notice of the location in Nantaku.  There being no objection, notice was taken.  Tereas contended that the place to be searched was not specific enough because other family members may have occupied other rooms in the building.  I conclude that the place to be searched is described adequately to meet the standard of the Constitution.  I also reach the conclusion that the property to be seized, if found, is adequately identified.

[8 FSM Intrm. 269]

     To determine probable cause, the question is whether a substantial probability exists in the mind of a cautious person which leads him or her to conclude that the items to be seized that are the evidence of a crime, Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 76 (Pon. 1985), are in a particular place at the time the warrant is issued, see, e.g., United States v. Steeves, 525 F.2d 33, 37 (8th Cir. 1975) ("probable cause upon which a valid search warrant must be based must exist at the time at which the warrant is issued, not at some earlier time").  Compare SCREP No. 23, II J. of Micro. Con. Con. 793, 794 ("Probable cause is not proof of guilt, but shows that a reasonable ground for suspicion, sufficiently strong to warrant a cautious man to believe that the accused is guilty of the offense, exists.").

     In addressing this question, I first consider the informant who is the source of the police officer's information.  Most importantly, the informant is named and is a witness.  Additionally, his information about his ownership of the two .22 rifles was verified.  The informant was also giving information subjecting him to criminal liability in that he said that he owned rifles that were not currently registered.  By their terms registration cards expire two years after issue.  11 F.S.M.C. 1205(2)(d).  I conclude that the police officer's informant was reliable.

     The factor requiring the most careful attention was whether the firearms were at the building at the time of the issuance of warrant.  As for the M-16 and the pistol, the informant would have seen those being packed up in a container addressed to the store between three and fifteen months earlier.  From this I infer delivery to the addressee.  As for the two .22 rifles, it is only known that the informant left them in the building some time after 1989.  The time lapse is crucial, but it is not considered in isolation from other factors.  It has to be looked at in combination with the nature of the activity and what the item is.  United Sates v. Dozier, 826 F.2d 866, 871 (9th Cir. 1987) (5 month old information concerning marijuana growing scheme not stale because of long-term nature of offense);  United Sates v. Foster, 711 F.2d 871, 878 (9th Cir. 1983) ("The passage of time is not necessarily a controlling factor in determining the existence of probable cause.  The court should also evaluate the nature of the criminal activity and the kind of property for which authorization is sought.");  United Sates v. Schauble, 647 F.2d 113, 116 (10th Cir. 1981).

     The nature of the activity in this case is simple possession.  There is no evidence of trafficking or commerce or anything of that nature.  The nature of the activity is really inactivity.  It is not difficult to have possession of a gun kept within a house.  A firearm, of course, is something that will not deteriorate or pass away just through the passage of time.  Firearms are usually left in just one position where kept and rarely, if ever, used.  I have considered that the informant did not see the M-16 or pistol in Chuuk.  I do infer delivery and then continued possession of it after receipt as a continuing matter.

     I conclude that the defendant has not met her burden to show that probable cause did not exist, and that the search warrant was issued unlawfully.  I conclude that a cautious person would have concluded that at the time the warrant was issued there was a substantial probability that the items would have been located within that building which housed the store and the residence.  For these reasons, the motion to suppress was denied.